While the headline makes it seem different, the link below to the latest ABC News/Washington Post poll shows that more and more Americans are wanting the legislatures to start making more policy, particularly on so-called "moral issues" than the courts. This may seem surprising, particularly to Democrats who have long looked to the courts as a way to guarantee rights. It now appears that the strategy is back firing.
While Evangelical Republicans probably do look at "activist judges" as the downfall of American morality, the problems extends much further back. Starting in the 1950's in particular, people, led principally by Democrats, began turning to the Court to vindicate certain rights. Now some of the rights guaranteed by decisions of the Supreme Court are just, such as equal education, one-peron-one-vote, etc. But other decisions have led to a great deal of polarization like Roe v. Wade. But the nationalization of American politics, in part throught a more active Congress and in part through the use of the courts to bring about social change, means that most Americans came to believe that we have all sorts of "rights" such as the "right" to an abortion or the "right" to privacy.
What most people describe as "rights" are actually liberties. Rights are the subject of government guarantees. For example, people have the right to not be subject to unreasonable searches and seizures, meaning the government has an affirmative duty to prevent such incidents. However, other matters, such as abortion, is a liberty. Liberties are freedoms we enjoy that are generally, but not required to be, free from government interference. Moreover, many liberties that we enjoy are actually privileges granted by the government.
The survey reported on below discusses three issues dealing with morality or having moral overtones, the death penalty, gay marriage, and abortion. I want to leave the issue of the death penalty off the table for this discussion because there appears to be an fairly clear majority of Americans (57%) who want the courts to be heavily involved in that issue and because it is not really an issue related to rights, as they are perceived by most Americans. Yet the issues of abortion and gay marriage are those that people, one one side or another refer to as a "right" and all of them do so incorrectly.
Those supporting the concept of gay marriage may have a valid equal protection of the laws argument, but there is no actual right to marriage, contrary to what many people believe. Marriage is a privilege, regulated in part by the state. There is a reason why you have to, generally, obtain a license to get married. By getting married certain legal consequences flow from the legal act of marriage, consequences largely related to property and personal interests. Many of those interests can be guaranteed by other legal mechanisms like wills, powers of attorney and other such instruments, but the marriage license and the marriage certificate are a short cut, done for administrative convenience.
The so-called "right to marriage" is actually a guarantee by the courts that the state shall not imperissible burden the liberty of someone to marry. That does not mean the state cannot erect certain barriers to obtaining a license, including, if the state legislature so chooses, a requirement that marriage between a man and a woman. Now, before you blast me for being hypocritical, the state legislature is one of the arbiters of the health, welfare and morals of their population. Thus if the state legislature, in their collective wisdom, responding to the will of their constituents believe that marriage should be only between a man and a woman, that is the nature of the political process. If you do not like the policy enacted by the legislature, the proper forum for having your greivance redressed is the legislature, not the courts. When gay activists turned to the Massachussets Supreme Court for a right to marry, many other states responded by enacting either statutes or state constitutional amendments limiting marriage to a union between a man and a woman.
The Washington Post poll finds that most Americans think the legislature or direct democracy are the proper fora for undertaking such policy making regarding marriage. And they are right. Regardless of your historical or moral view of the history of marriage or your religious beliefs regarding marriage, the institution of marriage is fundamentally a liberty afforded to individuals--not a right to be guaranteed by the state. The state may prohibit marriage by minors, or between family members too closely related, etc. However, those minors and too closely related family members have a justifiable claim for other true rights.
Likewise, the "right" to an abortion is actually more a liberty, subject to the interests of the state. As currently formulated, abortion is, more or less, available in the first trimester. Thus a woman is a liberty to terminate her pregnancy should she choose to do so. However, her liberty becomes subject to state interest as her pregnancy matures. The state is not violating her "rights" when it says that a woman cannot get an abortion past a certain, somewhat arbitrary point in time. Rather the state is asserting its interests over those of the woman.
Of course the state may impose its interests above the actual rights of others, but the legal barrier to doing so is quite high. Whereas, when it comes to liberties, the barrier is not necessarily as high.
When looked at through the lens of rights vs. liberties, many Americans believe that the state legislatures should be setting policy on a number of fundamental liberties (and privileges) we enjoy. The legislature remains the proper legal and political forum for the definition of many of the liberties we enjoy. As social norms evolve, the liberties we enjoy evolve as well. I have no doubt that as we as a nation evolve, society's attitude toward gay marriage will also change.
However, in the meantime, as the poll suggests, we need to look more to our legislatures for policy making, rather than asking the courts to do so. Of course, the legislatures need to step up and make policy and stop punting to the courts, but that is the subject of another rant.
Evangelical Republicans Trust States on Social Issues
No comments:
Post a Comment